Activist Judges: What Should We Do?

[Kennedy 0]

http://www.washtimes.com/commentary/20050420-085928-8924r.htm

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The 'extreme' theme
By Don Feder

When liberals use intimidation to stifle a debate, it's a sure sign of their position's intellectual bankruptcy.

On April 14, Democratic Sens. Chuck Schumer of New York, Harry Reid of Nevada, Debbie Stabenow of Michigan and Dick Durbin of Illinois demanded President Bush and Republican congressional leaders "denounce" so-called "inflammatory comments" that "openly threaten sitting judges."

The object of their invective was a Washington conference the week before (sponsored by the Judeo-Christian Council for Constitutional Restoration). From the tone of their letter, you would think the gathering was snarling mob brandishing nooses.

In fact, speakers included a former state chief justice, members of Congress, an Orthodox rabbi, a niece of Dr. Martin Luther King, and a number of legal scholars.

Mr. Schumer et al are in a frenzy over conference-proposed reforms, including withdrawing jurisdiction (under Article III of the Constitution) and impeaching the worst judicial offenders.

Judges have never been sacrosanct. From Thomas Jefferson to Franklin Delano Roosevelt, presidents have scathingly rebuked the judiciary. Jefferson warned that the Federalist judges of his day were becoming "an oligarchy' whose objective was to establish "despotism."

Abraham Lincoln excoriated Chief Justice Roger Taney for the Dred Scott decision. Taking its cue from Lincoln, the Republican press of the 1860s referred to the Taney court as "a diseased member of the body politic" worthy of "amputation."

In a 1937 radio address, FDR — furious when the Supreme Court declared several New Deal programs unconstitutional — proclaimed, "We must save the Constitution from the court and the court from itself." Was this inflammatory rhetoric that "might encourage violence against judges"?

Critics of judicial activism are trying to defend representative government against the violence done by judges who have turned constitutional law into a game of how-much-can-I-get-away-with, in the guise of interpreting the Constitution.

Last month, the Supreme Court struck down the laws of 18 states allowing the execution of minors. Justice Anthony Kennedy had the audacity to write that in interpreting the Constitution, it was entirely proper to "acknowledge the overwhelming weight of international opinion against the death penalty" — as if the Founding Fathers intended their words to be informed by the views of the French and the Germans.

Four days earlier, California Superior Court Judge Richard Kramer threw out a state law restricting marriage to a man and a woman (enacted by referendum), on the grounds that, "It appears that no rational purpose exists for limiting marriage ... to opposite sex partners." Judge Kramer didn't even try to frame a constitutional argument. In essence, what he said was: This doesn't make sense to me. Therefore, I'm going to nullify the will of 61.4 percent of voters.

The clearest example of judicial juggling to arrive at a predetermined result is Justice Sandra Day O'Connor's position in two Supreme Court sodomy cases. In Bowers v. Hardwick (1986), O'Connor sided with the majority in upholding the constitutionality of Georgia's anti-sodomy law. In Lawrence v. Texas (2003), she went with the majority again — this time striking down a nearly identical Texas law.

The Constitution didn't change in the intervening 17 years. Neither did the justice's understanding of the Constitution. (Does her 2003 vote suggest she was incapable of reading the First Amendment in 1986?) What changed was Justice O'Connor's attitude toward homosexuality — which she then read into the Constitution to arrive at the desired conclusion.

For Schumer and company, the courts are a giant pinata. Liberals strike it, and out fall abortion on demand, a constitutional "right" to sodomy, rights for illegal aliens and foreign terrorist suspects, racial preferences, limitation of the death penalty and (at the appellate court level) a prohibition on display of the Ten Commandments and God in the Pledge of Allegiance. One more good, hard whack at the right time and same-sex "marriage" will magically pop out.

Democrats won't debate judicial activism because they can't — what judges are doing to the Constitution (to liberal approbation) is indefensible. So they resort to a smear campaign to silence swelling demands for judicial reform.

Other than suggesting to the politicians that judges should be questioned on the constitution and law rather than ideology, I'm out of ideas.
(I oppose FDR "Court Packing," and don't like the idea of judges subject to too easy of an impeachment process)

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[Sen.Blutarsky 0]

Unaccountable government officers shouldn't be making law in America ... perhaps it's time to dust off The Malleus Maleficarum for guidance.


Blutarsky 2008. No Prisoners!

[kelpdiver 2]

Face it, the Right's objections to "activist" judges is only about not getting what they want. IE, not keeping alive someone who effectively died 15 years ago. Look at this poorly written editorial you cite: Nullifying the will of 61.4% of the popular vote is BAD, but O'Connor is also BAD for changing her mind over time with the majority opinion.

If you want a strict reading, I don't see how you can use the constitution to condone the discrimination against gays. It was written to exclude religion from running the show, so uptight Christians's view on marriage and relations shouldn't matter. Or do you offer a good reason to restrict people's sex lives?

The Supreme Court has long been an instrument of discrimination, but sometimes it is the first to buck away from the tyranny of the masses. If you don't like it, you can always move to China.

[lawrocket 3]

Well, Kennedy, your thread title indicates an inherent problem with relief from activist decisions. In a sense, anti-activisits must become "activists." Anti-activist judicial activism is like an anti-missile missile.

"Activism" includes a number of things. Typically, it means doing new things without precendent. There are several ways of doing this. The first is to overturn an existing law. Well, judges can do that when las conflict. For example, If CA passes a law stating that warrantless searches would be allowed, a judge would be empowered to overturn that law on the basis of the 4th Amendment. I don't think people have a problem with that most of the time.

Or, an activist judge may make a ruling that goes against popular opinion. The ruling overturning California's Proposition 187 was against a lot of the public opinion. But, the judges were put there with life terms so that they didn't have to worry about being elected - they merely interpret the Constitution free of political pressure.

Some "activists" are called doing so because they start interpreting the Constitution broadly so that they can pick out as many unenumerated freedoms as possible. This is where it starts getting interesting. Liberals indicate that the Constitution is a "living, breathing document" and that new freedoms develop from it all the time. While the 9th Amendment supports this, the courts never really rely upon it. Instead, courts develop reasoning behind other broad rights to make them more specific.

In this sense, the third type that I mentioned view the Constitution (and other laws) more metaphyscially. They seek to learn more of the intent of the law rather than interpreting that plain words. They are "Broad Constructionists" who seek to glean "legislative intent" as opposed to reading the plain meaning.

These types are the ones who re-write the law to go more accurately reflect what they surmise is the reason behind the law. I call it "judicial editing." Yeah, I've got a problem with courts rewriting statutes and laws. How the hell are people supposed to get notice of the meaning of a law? People get notice of the plain language of a law.

The fourth type of activist is the one that creates new law wihtout any legal principle behind it. This is how common law developed. However, courts realy do not create legal protections anymore. Legislators do that. Legislation should create new rights. Actvist judges are the ones who will say, "Dang. We've recognized that there is no right to this for 200 years. But, we think this is stupid, so we'll start recognizing it now by interpreting the Constitution in a new way. Those other guys from the past never looked at it like we are." Yeah, I've got a problem with that, too.

Do I view Judge Kramer's decision as that of an activist judge? Nope. The guy applied sound and well-established legal principals in his decision. Sure, I don't think that the challengers of the law met their burden under the rational basis test, but that's my thinking.

Now, those judges in Florida who decided to rewrite a statute to give more time to count Gore's votes in 2000 - yeah, that's judicial activism in the extreme. Seven of the Justices agreed that the Florida Supreme Court's dictated process violated due process of voters, as well.

Here's the problem, though. Marbury v. Madison is judicial activism. Since then, the courts were not activist. While Lincoln derided the Dred Scott decision, it was, at the time, sound legal principle, and only activism would have created a different outcome.

Since FDR, and especially with the Warren Court, judges have been more than willing to find new rights like Miranda. Recently, the Supreme Court reexamined Miranda. While Rehnquist in his opinion stated that the Miranda Decision was activist, and the right to be read your rights was basically plucked out of a broad reading of rights, he decided not to overturn it. Why? Because overturning this decision would be activism.

Proponents of judicial restraint, if honest, won't overturn activist decisions. So, do these judges respond to activism with activism of their own? Unfortunately, that's the only way to fight it.

My wife is hotter than your wife.

[Kennedy 0]

I suppose I should have defined activist judges. The problem I saw with that is the old "defining pornography" paradox.

I suppose the best way to start is by stating that when judges "find" new powers for the government or their court, that is activism. Roe v Wade was activism. No where in the constitution can you find "power to decide who gets abortions and when."

Next, it is activism when courts look to foreign law and precedent to rationalize their decisions. Their job is clearly to interpret US laws, not to compare US laws to everybody else's.

Intervening in elections where no question of law truly exists, or deciding to exclude clear law in favor of "a better idea" is activism. See 2000 presidential election in Florida, or the Torricelli/Lautenberg candidacy for US senate.

"Judicial editing" is a good phrase for it, and I agree that it is just as despicable as creating law out of thin air.

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Yes, Marbury Madison was activist, but there was no avoiding it. The role of the court had to be defined. They used that case to do it.

I've always found Miranda to be a little over the top, but prior to it there was too much leniency for law enforcement. Maybe that pendulum is finally losing momentum and will settle in the middle rather than continuing to swing.

It's also funny how so many "broad construcitonists," who border on "judicial editors" don't see things quite so broadly with the second amendment. They don't look at intent, don't read the plain language, so what do they see there? An accidental addition that should've been blotted out?


edit: maybe the short version is when a judge consistantly finds new powers for his court over other branches and new powers for the government over civil/private actions.

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[kallend 1,651]

It seems to me, without doing a statistical analysis or anything like that, that "activist" judges generally find new rights for the people, rather than for the government. For example, the much maligned Roe vs Wade gave a new right to women and prevented government from meddling in their reproductive choices.

I'm genarally in favor of people's rights trumping government rights.

I would have thought conservatives would like that too.

...

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[Kennedy 0]

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Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

What's abiguous about that?

Does that phrase "states' rights" mean anything to you?

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I would have thought conservatives would like that too.

For the umpteenth time, I am a Libertarian, not a conservative. I hold fairly conservative values, but believe very strongly in a libertarian government. You just happen to see me arguing against one side's hysteria more often than the other. There are plenty of folks on dz.com lining to bash "right wing" antics. Like you, for example.

Honestly prof, if you just take off those pinko-tinted glasses once in a while, we could get past this left-right idiocy and talk about legal, constitutional, or right and wrong. Or we can continue on with these Shrub vs sKerry posts.

edit: I don't see liberals or conservatives as my opponents or this thing ideological opposites. The people I can't agree with, and don't want running the government, are socialists and communists.

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[lawrocket 3]

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the much maligned Roe vs Wade gave a new right to women

But therein lies the problem. The court pulled it out of thin air. Sure, maybe the decision was politically good. Maybe it was morally the rightt hing to do. So what?

As kennedy mentioned, leave it to the states. I'll put it this way - plenty of us think that women (and men) should have the personal freedom to be prostitutes. Nowhere in the Constitution does it say anything about it. So, what happens? Nevada says, "Okay. We'll allow it." WHich ain't a violation of federal law.

Since it is nameless, let's call it the "kallend principle." States may give more rights than the federal constitution but not less.

If a state wants to guarantee a right to an abortion, let it. But pulling rights out of thin air is preposterous, isn't it?

My wife is hotter than your wife.

[billvon 2,435]

>But pulling rights out of thin air is preposterous, isn't it?

I don't think so. Any right not called out in the constitution, or legislated by a state, belongs to the people. I think we have to get away from the idea that "the government gives us rights" and get back to the idea that we start out with the right to do anything and everything we want, and those rights can only be limited or removed if there is an overriding reason to do so i.e. potential or actual harm to others.

[boudy 0]

http://www.heritage.org/Press/Events/archive.cfm

Kennedy, et al: an interesting analysis regarding the subject of this thread may be found by visiting the linked site & scrolling down to the April 6 entree "Scalia Dissents by Kevin Ring." Mr. Ring is a Scalia fan and also quite proud of his conservative credentials but he takes aim at the current manical frenzy to "rein in" the judiciary.

The video was rebroadcast on C-Span early AM. I thought the author covered the topic in a thoroughly intellingent, engaging and plain spoken matter.

Kennedy, you seem to be seeking an even handed & insightful analysis of constitutional issues. The article you posted satisfies neither criteria. The discussion linked above illuminates why the judiciary bashing & "historical" analysis is off target.

The author explores the value of Scalia's strict constructionist approach from a conservative's viewpoint. (I don't always agree with Scalia but he does strive for consistency.) Ring then proceeds to expose the conflict between Scalia's view & the current uproar over "activist judiciary." As noted in posts above - Ring believes the "anti-activist" movement is a thinly disguised thrust for activism for conservative agendas (likely to backfire in the long run). Succesfully intimidating the judiciary (whether from right or left) would jeopardize traditional federalist & balance of power principles.

It's well worth the time I think.


For a historic backdrop concerning constitutional actors I found the book "Founding Brothers" enthralling(I actually listened to CD's while rehabing my ACL). It's amusing how often those referring to the founders' intentions obviously have done scant research.


On the matter of judges: An interesting view into the workings of one of the keenest legal minds may be found at the Posner-Becker blog. (google it) 7 th Ciruit Judge Richard Posner has forged an economic analysis of the law - his decisions are discussed in law classes across the country.

[kallend 1,651]

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the much maligned Roe vs Wade gave a new right to women

But therein lies the problem. The court pulled it out of thin air. Sure, maybe the decision was politically good. Maybe it was morally the rightt hing to do. So what?

As kennedy mentioned, leave it to the states. I'll put it this way - plenty of us think that women (and men) should have the personal freedom to be prostitutes. Nowhere in the Constitution does it say anything about it. So, what happens? Nevada says, "Okay. We'll allow it." WHich ain't a violation of federal law.

Since it is nameless, let's call it the "kallend principle." States may give more rights than the federal constitution but not less.

If a state wants to guarantee a right to an abortion, let it. But pulling rights out of thin air is preposterous, isn't it?

If the people only have the rights explicitly granted in the Constitution and BOR excluding amendments IX and X (which don't seem to mean very much), well, that's pretty sad for a country that calls itself "The Land of the Free".

I was under the impression that we were born with inalienable rights that had nothing whatever to do with the government.

But that's just my liberal thinking. I'm sure some conservative will correct me.

...

The only sure way to survive a canopy collision is not to have one.

[lawrocket 3]

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I was under the impression that we were born with inalienable rights that had nothing whatever to do with the government.

Yep. I agree there. And can you remember Robert Bork? Of course you do! His name is in the lexicon now because he had the gumption to say that the word "privacy" never appears in the Constitution. He was right, but that didn't matter.

But, let me offer an example of activism.

Anyone who is in this forum regularly, or is following the judicial appointment process is afamiliar wiht Janice Rogers Brown. Remember, she's the one who is being accused of "fighting to protect discrimination in the workplace." Of "protecting" and "fomenting" racism in the workplace in he decision in Aguilar.

http://lw.bna.com/lw/19990810/s054561.htm

Read this opinion, kallend. It's the opinion that is used to bash on Brown for protecting racism.

I think the pluraility opinion is the single MOST EXTREME ACTIVIST OPINION I HAVE EVER READ. IN that case, the plurality said, and I'm paraphrasing, "the government, and the courts, are perfectly within their rights to ban words and phrases we find objectionable. Rather than simply hold that person civilly liable for damages for their racist statements, we believe that the need for equality and good behavior, based on a model of political correctness, far outweighs the ancient and dying protections from a prior restraint on free speech. The guy was an asshole, and he shouldn't be allowed to say the following words - ever..."

Kallend - read the opinion. Most importantly, read Mosk's dissent. Then read Brown's dissent. Then tell me what you think about a prior restraint on words because they can be offensive.

My wife is hotter than your wife.

[kallend 1,651]

I guess it's only acceptable if you agree with it, right?

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The only sure way to survive a canopy collision is not to have one.

[lawrocket 3]

Did you read the opinion?

Edited to add: Note that the opinion was based upon a law outlawing racial epithets in the workplace. Seems to me that there have been attempts by legislatures to ban certain ideas and concepts, like "pi." I guess if a legislature passes a law that is unconstitutional, we should all suck it up.

I reckon you should prepare yourself for a career teaching only "intelligent design." That dang "Big Bang" can't be proven. What if a court banned all teachers and educators from using the term, "Big Bang" in a classroom? That is, if you used that term, or any other term or words (which would be listed, of course - you'd have to know what was unaccetable) describing the big bang, you'd be put in jail.

Thet's what the Aguilar Court did - only instead of banning any and all reference to the big bang (a controversial topic) in schools, it banned the use of specific epithets in the workplace. Slippery slope, eh?

Hmmm. I guess you're right. When a court and a legislature find something agreeable, like burning physics texts, it's okay to screw the First Amendment.

My wife is hotter than your wife.

[Kennedy 0]

Once again the professor shows that his version of free speech is "you can say anything you want, as long as you agree with me."

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[lawrocket 3]

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Once again the professor shows that his version of free speech is "you can say anything you want, as long as you agree with me."

No, I'm not saying that. I don't think kallend is even suggesting that.

But, what's interesting is that the opinion I put up there is the same one that people are using against Janice Rogers Brown. In fact, that case and the ACLU's brief caused me to drop my support for the CA ACLU. I had thought they served for free speech. I was wrong.

My wife is hotter than your wife.

[Kennedy 0]

I don't know what they can really claim to stand for anymore.

First amendment? Speech? Nope. Religion? Yeah, right.

Second? Bah, they still cling to that ridiculous "collective rights" idea.

I suppose they ought to go from American Civil Liberties Union to the American Criminal Litigators Union. Not original, I'm sure, but does seem like it more and more often.

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